Court to feds: Identify aliens arrested in NH

By BILL SMITHNew Hampshire Union Leader

A federal appeals court has ruled that the U.S. Immigration and Customs Enforcement agency (ICE) must release the names of six individuals arrested in New Hampshire during a 2011 federal crackdown on criminal activity involving illegal immigrants.

Friday's ruling by the U.S. Court of Appeals for the 1st Circuit in Boston overturns a decision in U.S. District Court in Concord in a case brought by the Union Leader Corp., parent company of the New Hampshire Union Leader and Sunday News.

The district court had ruled that the government had the right to keep secret the names of the people arrested. The appeals court said the information must be provided to the newspapers.

The Union Leader Corp. filed suit in federal court after ICE and the Department of Homeland Security refused the company's Freedom of Information Act (FOIA) request for the names and addresses of the individuals arrested.

The federal court in Concord rejected the newspapers' appeal on April 18, 2013, exactly one year before last week's appeals court ruling.

The district court had ruled that a specific provision of the federal Freedom of Information Act protects individuals from having private information about them publicly disclosed.

The lower court ruled that the newspapers failed to show that their interest in knowing the names of those arrested overcame the arrestees' interest in their right to privacy. The appeals court reversed that finding.

"I'm very pleased that the court held as they did, that the public's interest in knowing who the government has arrested outweighs the privacy interest of those people arrested," the company's attorney, Gregory V. Sullivan, said Saturday. "The power of arrest by the government is so significant to an individual's freedom that transparency is mandated."

The six New Hampshire arrests were made in March 2011 during Operation Cross-Check, a nationwide sweep of what ICE referred to as convicted criminal aliens. The agency's enforcement officers had filed immigration forms indicating that the six were in the country illegally.

The federal FOIA exempts the release of information that could "reasonably" be expected to be an unwarranted invasion of personal privacy. That requirement is unique to the federal Freedom of Information Act and not found in state public records laws, Sullivan noted.

"In the state of New Hampshire, that is not the case," Sullivan said. "In fact, the state law is that the names must be released and that the motivation of the requestor is totally irrelevant."

Sullivan said no state requires such a justification for the release of names of people arrested.

In court, Sullivan argued that the privacy exemption should not apply because the newspapers needed the information to properly report on the issues raised by the arrests.

"The names of the (arrestees) are necessary in order for (the) Union Leader to undertake the important and vital task of reviewing the performance of governmental actors and agencies, both federal and state," Sullivan said in a brief filed with the appeals court.

Without the names, Sullivan argued, the newspapers could not fulfill their obligation to report how the government did its job.

He noted that one of the six people arrested in 2012 had been ordered deported in 1988, but remained in the country for nearly 25 years. During the intervening years, that suspect was arrested and convicted of a crime, yet remained in the United States.

Without the names of those arrested, Sullivan argued, the newspapers would be handicapped in finding out how federal agencies handle immigration cases.

The district court called the newspapers' interest in investigating federal handling of immigration cases "speculative" and denied the request for their names and addresses.

The three-judge appeals panel, however, said district court Judge Paul Barbadoro had given "inadequate weight to the public interest in disclosure" and overturned the lower court decision keeping the names a secret.

In the appeal, Sullivan had narrowed the focus of the case to learning their names and not their addresses.

"But the newspaper should never have had to go through the time and expense of seeking it," McQuaid said. "It is just common sense that there is a justifiable public interest in knowing who these illegals are. It is the only way we can track to see how the authorities have handled the individuals and thus how the authorities have or have not done their jobs."

In its decision, the appeals court said disclosing the names "will enable the Union Leader to investigate public records pertaining to the arrestees' prior convictions and arrests, potentially bringing to light the reasons for ICE's apparent torpor in removing these aliens."

In the government's written argument, submitted to the appeals court, Assistant U.S. Attorney Michael McCormack argued that "the specific identity of each of the individuals will not provide any further information whatsoever as to what ICE is 'up to' or shed any light on the operations of the agency."

The appeals court remanded the case to the district court to issue an order releasing the names. The lower court order keeping the addresses secret will remain in effect.

Sullivan said he expects that the decision will mean ICE will be required to release names that were blacked out in arrest documents previously released.

The U.S. Attorney's Office could not be reached for comment on the ruling or on whether it would appeal, either to the full bench of the circuit court or to the U.S. Supreme Court.

The decision is considered binding on lower courts in the 1st Circuit, which includes courts in New Hampshire, Maine, Massachusetts, Rhode Island and the territory of Puerto Rico. It is considered persuasive authority in the country's 12 other Circuit Courts of Appeal.